The role of the ECJ in EU legislation

1. The role of the ECJ in EU legislation Fiona Godfrey Consultant in EU policy European Respiratory Society 88 rue des Sources Luxembourg Email: fgodfrey@pt.lu

2. How the European Court of Justice influences EU health policy and law Two Courts: • European Court of Justice (ECJ) • Court of First Instance (CFI) • Both in Luxembourg • 15 Judges, 8 Advocates-General

3. The role of the Courts • To provide a judicial review of most EU legislation and acts • Cases can be sent from the national courts of the member states to the ECJ or • Introduced directly by interested parties into the CFI

4. The “Tobacco Cases” • 1998-2000 “Tobacco I” - appeal against 1998 tobacco advertising directive (Case C-376/98) • 2000-2002 “Tobacco II” appeal against 2001 tobacco product regulation (Case C-491/01)

5. Background • 1989 EU Commission proposes tobacco advertising directive • 1989-1997 Discussion in European Parliament and Member States • 1998 Directive 1998/43/EC adopted, bans almost all tobacco advertising • Directive adopted as an internal market measure, not a health measure • October 1998 legal challenge toDirective

6. Background cont. • November 1999 Commission proposes amendments to 3 existing tobacco product and labelling directives • October 2000 ECJ gives judgment in Tobacco I case • July 2001 Products Directive 2001/EC/37 adopted • October 2001 legal challenge to new directive (Tobacco II) • December 2002 ECJ gives judgment

7. Tobacco I Several cases in one: ECJ • German government appeal • Appeals from British American Tobacco (BAT) and Imperial Tobacco in the UK CFI • Salamander Shoes, Davidoff, several advertising firms • No formal NGO involvement but several member states intervened in support of directive

8. Arguments Germany & tobacco companies argued 1998 Tobacco Advertising Directive was illegal - why? • No legal base in EU treaty for such a public health measure • Disproportionate • Did not respect subsidiarity • In breach of fundamental right to freedom of speech • EU failed to give reasons

9. Judgment ECJ ruled the tobacco advertising directive was illegal: • It did not remove obstacles to trade in the internal market • It did not eliminate distortions of competition but • The EU could adopt legislation which protects public health • The EU could ban certain types of tobacco advertising

10. Effect of judgment • EU tobacco advertising directive thrown out • Commission brought forward new directive limited to direct advertising • Commission generally became more conservative in tobacco control policy • Pro tobacco Legal Affairs Committee took control of all tobacco legislation in European Parliament

11. Tobacco II • BAT, Imperial Tobacco, Japan Tobacco and German government challenged tobacco advertising directive, 2001/37/EC • Same grounds as Tobacco I

12. Judgment ECJ ruled tobacco products directive was legal and that the EU could • Update previous laws in this field • Take action to protect public health • Adopt measures to protect public from tobacco smuggling • Ban the words “light” and “mild” • Impose large warning labels • Order the disclosure of ingredients in tobacco products

13. Lessons to be learned • The tobacco industry will challenge every piece of EU legislation in the courts • NGOs need to find better ways of influencing the legal process • EU institutions and member states don’t always “get it” • This leads to a conservative approach to legislation and policy • We need a better legal base for health • Be positive - take one case at a time

14. More information • ECJ web site: • http://curia.eu.int/en/index.htm • European Parliament public hearing on 2nd advertising directive: • http://www.europarl.eu.int/hearings/20020415/juri/default_en.htm • EU laws: • http://www.europa.eu.int/eur-lex/en/search/search_lif.html